Exhibit 4.21


 


STANDSTILL
AND OPTION AGREEMENT


 


This Agreement is made and entered into between
Perlegen Sciences Inc., having its principal office at 309 University Dr.,
Menlo Park CA, USA (hereinafter “Grantor”),
and Genetic Technologies Limited ACN 009 212 328, having its principal office
at 60-66 Hanover Street, Fitzroy, Victoria, Australia 3065 (hereinafter “Grantee”).


 


1.       Grant of Option. 
In consideration of the payment of the Option Fee by the Grantee to the
Grantor, the receipt of which the Grantor acknowledges, the Grantor grants the
Grantee an exclusive right during the Option Term to conduct due diligence
investigations on the Brevagen Assets and seek to agree formal documents to
purchase the Brevagen Assets from the Grantor in accordance with this Option
Agreement.


 


2.       Definitions.


 


a.       The Option Fee means that amount which the
Grantor and the Grantee agree shall be paid for the Option.   The
Option Fee shall be Nine Thousand One Hundred (USD 9,100) United States
Dollars.  The Grantee shall pay the
Option Fee within 14 days of execution of this Agreement.


 


b.      The Brevagen Assets means all the Grantor’s business assets which
include: the 7 SNP Validated Assay for Breast Cancer “BrevaGen” (and all
BrevaGen related materials including technical/validation, background/marketing
materials, intellectual property/licenses/know-how (including all BrevaGen
related patent filings (Genomic Analysis/Method filings and Breast Cancer
filings)), and customer research/lists required to manufacture, develop, create,
transfer, perform, distribute or sell the Brevagen test) , CLIA Accreditation,
Equipment including MASSArray machine, and The BrevaGen Sales and marketing
materials.


 


c.       Option
means the Grantee’s exclusive
right during the Option Term to conduct due diligence investigations on the
Brevagen Assets and seek to agree formal documents to purchase the Brevagen
Assets in accordance with the terms of this Option Agreement.


 


d.       The Option Term means the period of four (4) months
from the date of execution of this Agreement.


 


3.       Exercise of the
Option.  The Grantee may exercise the Option at any
time prior to expiration of the Option Term by giving written notice that it
wishes to acquire the Brevagen Assets. 
The notice must be signed by the Grantee and delivered to the Grantor at
its address stated above on or before the expiration of the Option Term.


 


4.       Confidentiality.  
Pursuant to the Confidentiality Agreement signed by the parties on or about 11 November 2009,
the parties agree to maintain proprietary information revealed pursuant to the
Option Agreement in confidence (other than as required by the ASX Listing
Rules), to disclose them only to persons within their respective companies or
professional advisers with a need to know, and to furnish assurances to the
other party that such persons understand this duty of confidentiality.


 

















 


5.       Conditions to
Purchase.   During the Option Term:


 


a)      The Grantor must:


 


i.      promptly provide
all  due diligence materials reasonably
requested by Grantee;


ii.     ensure that, in providing
due diligence material and all reasonable assistance to the Grantee, the
material supplied by the Grantor is a bona fide reflection of the state of the
business and the Brevagen Assets;


iii.    maintain the Brevagen Assets
in good standing;


iv.    seek and receive
shareholder/stakeholder approval (if required) to sell the Brevagen Assets; and


v.     use reasonable
endeavours to prevent any event which may have a material adverse effect on the
value or viability of the Brevagen Assets.


 


b)      The Grantee must:


 


i.      complete all
technical, market, commercial, management, financial, tax, legal and IP due
diligence to the sole satisfaction of the Grantee;


ii.     raise sufficient
capital for it to to fund the transaction and the proposed BrevaGen product
re-launch; and


iii.    receive any and all
necessary shareholder, regulatory or third party approvals for the proposed
transaction.


 


6.       Option
Term.  The Grantor will not during
the Option Term, directly or indirectly, through any of its employees or any
adviser or representative retained by them canvass or solicit or encourage
(including, but not limited to, by way of providing any information or entering
into any form of agreement, arrangement or understanding) to initiate or
continue with any enquiries or proposals from any third parties regarding any
sale of part or all of the Brevagen Assets or similar transaction in relation
to the Brevagen Assets.


 


7.       Transaction
Structure and Terms of Sale of the Brevagen Assets. 
It is agreed that the proposed transaction for the sale and purchase of the
Brevagen Assets will reflect that, subject to any valid set-off, agreed between
the parties, as a result of the Grantee’s due diligence, the Brevagen Assets
have a maximum value of USD1,600,000 (which shall be made up of USD1,100,000 for
the 7 SNP Validated Assay, the MASSArray Equipment, The Sales and Marketing
Materials and either: a  USD500,000 fee or
4% royalty on BrevaGen sales at Grantee’s option). In addition, the parties may
wish to negotiate the sale of Perlegen’s remaining patent portfolio for up to
an additional USD1,000,000.


 


8.       Formal
Documents. The parties intend to seek to agree the terms and
conditions of a binding sale agreement in relation to the Brevagen Assets and
such other agreements as the parties may agree (“Formal Documents”) with a view to executing them as soon as
practicable and in any event on exercise of the Option.  However, there is no binding obligation for
the parties to enter into the Formal Documents and there is no binding agreement
until the parties execute the Formal Documents. 
The Formal Documents will (if entered into), in addition to reflecting
the basic commercial terms of this agreement include other provisions
ordinarily included in such documents.


 


9.       Expiry of Option. 
If the Grantee fails to exercise the Option before the expiration of the Option
Term this Option Agreement shall terminate and the Grantor may retain the
Option Fee and shall have no further obligation to the Grantee. If the parties meet the Conditions
to Purchase and an Asset Sale Agreement is secured, the Option Fee shall be
rebatable against the Purchase Price.


 

















 


10.     Assignment. 
This Option Agreement shall bind and benefit the parties’ successors and
assigns.  Neither party may assign rights under this Option Agreement without
the prior written consent of the other party.


 


11.     Entire Agreement;
Amendment.  This Option Agreement contains the entire
agreement of the parties with respect to the transaction described herein, and
no prior or simultaneous oral or other written representations or promises
shall be a part of this Agreement or otherwise effective.  This Option
Agreement may not be amended or released, in whole or in part, except by a
document signed by both parties.


 


12.     Warranty.  
Grantor represents and warrants that the Grantor has clear title to, and is
free to sell the Brevagen Assets.  In
addition, the Grantor represents and warrants that the due diligence material
supplied by the Grantee is a bona fide reflection of the state of the business
and the Brevagen Assets.


 


13.     Law.
This Option Agreement shall be interpreted in accordance with the laws of
Colorado.


 


To evidence their agreement to the foregoing terms
and conditions, the Grantor and the Grantee have executed this Option Agreement
below:


 


Execution Date:     
December 2009


 


 




	
  SIGNED for and on
  behalf of Perlegen Sciences Inc.
  by its duly authorised representatives:

  	
   

  	
  SIGNED for and on
  behalf of Genetic Technologies Limited by
  its duly authorised representatives:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name: 

  	
   

  	
   

  	
  Name: 

  	
  Dr Paul MacLeman  

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title: 

  	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer  

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
      December 2009

  	
   

  	
  Date:

  	
      December 2009